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Condition of probation which authorizes nonconsensual, suspicionless searches is unconstitutional

By John Wesley Hall, Jr.

In the absence of statutory authority, a condition of probation which authorizes nonconsensual, suspicionless searches is unconstitutional. State v. Bennett, 2008 Kan. App. LEXIS 97 (June 13, 2008). Terry supported search of defendant's purse for weapons when officer returned it to her after a stop. Speten v. State, 2008 WY 63, 2008 Wyo. LEXIS 65 (June 9, 2008): [*P24] Under Terry analysis, the question is this: at the time he searched the appellant's purse, did Deputy Seeman have a reasonable suspicion that the appellant was engaged in criminal activity, and if so, did the officer safety concern that engendered Terry justify the deputy's search of the appellant's purse minutes after the encounter began, and just as it was about to end? Asked more plainly, did Deputy Seeman have the right to pick up the appellant's purse and search it before handing it to her so she could leave? We conclude that, while this was not the typical fact pattern that leads to a Terry "stop and frisk," Deputy Seeman did, at the time of the search, have reasonable suspicion that the appellant was engaged in criminal activity, and Deputy Seeman did, at the time of the search, have reasonable apprehension as to officer safety...continue to full post

Full post as published by Fourth Amendment on June 15, 2008 (boomark / email).